| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC No. 61 of 01-02-2011 Decided on : 27-04-2012
Balbir Singh S/o Sh. Labh Singh, aged about 36 years R/o Village Sivian, District Bathinda. .... Complainant Versus
Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda through its Proprietor Dr. Naresh Goyal. Dr. Naresh Goyal, Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda. Dr. K L Bansal, Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda. Medical Superintendent, Fortis Hospital, Mohali. Medical Officer, Incharge NFL Hospital, National Fertilizers Ltd., Goniana Road, Bathinda. (Deleted vide order dated 14-02-2011) General Manager, National Fertilizers Ltd., Goniana Road, Bathinda. Divisional Manager, United India Insurance Co. Ltd., The Mall, Bathinda. Managing Director, United India Insurance Co. Ltd., Regd. & Head Office: 24 Whites Road, Chennai. Dr. Harshbir Singh Pannu (Dr. H S Pannu), CTVS Surgeon, # 1006, Sector 36 C, Chandigarh United India Insurance Co. Ltd., 54, Janplath, Connaught Place, New Delhi. .... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Ms. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member For the Complainant : Sh. R.P. Singh, counsel for the complainant For the Opposite parties : Sh. Nand Lal Garg, counsel for opposite party Nos. 1 to 3 & 9. Sh. Rajan Garg, counsel for opposite party No. 6. Sh. Sunder Gupta, counsel for opposite party Nos. 7 & 8. Opposite party No 4 & 10 exparte. Opposite party No. 5 deleted. O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainant is that on 26-02-2010, he suffered pain in his right arm. The complainant went to opposite party No. 5 i.e. Medical Officer Incharge, NFL Hospital, Bathinda and he after check up referred him for treatment to opposite party No. 1 vide O.P.D. Slip No. 4978. The complainant was taken to opposite party No. 1 on the same day i.e. 26-02-2010 wherein he was admitted vide Registration No. 10023379. The opposite party No. 2 attended him and conducted some medical tests upon the complainant. He underwent peripheral angiography on 27-2-2010 which revealed thrombus in right sub-clavian artery. The treatment advised by opposite party No. 2 was administered by opposite party No. 3 in the hospital. The complainant was diagnosed as suffering from Peripheral Vascular Disease. The complainant was advised Embolectomy and it was done on the complainant by opposite party No.2 on 2-3-2010. Before conducting the embolectomy, the opposite party Nos. 2 & 3 did not explain to the complainant its possible ill-effects. The opposite party No. 2 attempted Embolectomy upon the complainant but the operation failed. The opposite party No. 2 is DM Cardiology and not a qualified Vascular Surgeon and as such, he was not competent to perform embolectomy on the complainant. On 5-3-2010, the condition of the complainant deteriorated and opposite party Nos. 2 & 3 asked him to move immediately to Fortis Hospital, Mohali, for further operation and treatment from the Vascular Surgeon. On 6-3-2010, the complainant was discharged from the hospital of opposite party No. 1 by opposite party No. 2 and referred to Dr. Ravul Jindal, Fortis Hospital, Mohali/Hero DMC Heart Institute, Ludhiana. This recommendation was further endorsed by opposite party No. 5 vide OPD slip No. 5699 dated 6-3-2010 allowing an ambulance to take the complainant to Fortis Hospital, Mohali. The opposite party No. 2 charged a total sum of Rs. 60,650/- for the medical treatment given to the complainant besides the cost of medicine. On 6-3-2010, the complainant got himself checked up from Dr. Raval Jindal at Fortis Hospital, Mohali. The results of tests conducted at Fortis Hospital showed that Embolectomy conducted by opposite party No. 1 was a failure as the same was performed by incompetent and unqualified person in a negligent manner. The doctors at Fortis Hospital opined that there was no need to conduct Embolectomy as the complainant's disease was amenable to control through medicines. The doctor of Fortis Hospital, Mohali, prescribed certain medicines, advised some physiotherapy and asked to get rechecked in O.P.D. After 4 weeks. With this treatment, the condition of the complainant started improving. The complainant submitted an application to opposite party Nos. 1 & 2 requesting them to supply a copy of Bed Head Ticket containing complete record of his treatment from 26-2-2010 to 6-3-2010, but they did not do so. The complainant alleged that due to negligence on the part of opposite party Nos. 1 to 3, the complainant suffered 20 percent physical disability as per Disability Certificate No. 592 dated 21-4-2010 issued by Civil Surgeon, Bathinda. Although the complainant being an employee of the NFL, Bathinda, has got reimbursed a part of the expenses incurred by him for his treatment at opposite party No. 1 by opposite party Nos. 2 & 3, but opposite party Nos. 1 to 3 have no right to retain the amount of Rs. 60,650/- charged from him. Hence, the complainant has filed the present complaint seeking directions to opposite party Nos. 1 to 3 to refund the aforesaid amount and pay compensation and cost. The opposite party Nos. 1 to 3 filed their joint written reply and stated that Dr. Naresh Goyal i.e. opposite party No. 2 did his MBBS in the year 1991 and thereafter completed his MD in the year 1997 and thereafter did his DM in Cardiology in the year 2002. The opposite party No. 3 Dr. K L Bansal is M.D. (Medicines) and has done fellowship in non-invasive cardiology. The opposite party No. 1 has multiple wings of doctors namely Dr. Rupinder Singh Sidhu, D.M. (Gastro), Dr. Dalbir Brar M.S. Mch. (ortho), Dr. Vikas Jindal M.S., DNB (General Surgery), Dr. Rajan Sharma M.S. DNB (Urology), Dr. Archna Goyal M.D. (Radio Diagnosis). Besides them, there are many Specialists who visit opposite party No. 1 from time to time with the sole aim that the patients admitted in the hospital get best treatment qua the problems being faced by them. Balbir Singh son of Labh Singh aged 25 years resident of V. Sivian was brought by his brother Satbir Singh and he was registered at No. 100233799 referred by National Fertilizers Ltd., At that time, Balbir Singh was complaining of severe pain in his right arm and on examination his BP was 140/80 mmhg and pulse was 90/min. Precordial and rest of the systemic examination was unremarkable. Pulsation was feeble in right radial ulnar, brachial and axillary arteries. On 26-02-2010, he was admitted and some tests were conducted and on 27-02-2010, he underwent peripheral angiography which revealed thrombus in right subclavian artery. Dr. Harshbir Singh Pannu, who was one of the Chief Cardio Vascular Surgeon, whose services were available in the hospital performed Embolectomy. At the time of operation, Dr. Harshbir Singh Pannu, Chief Cardio Vascular Surgeon was assisted by Dr. Gurtej Singh Anaesthetist. All the details were mentioned in the Consumption Form and it was duly filled and signed by Dr. Harshbir Singh Pannu. The patient as well as his attendants, who were large in numbers at the time of operation were explained the possible ill-affects. With experience in hand, opposite party No. 2 has got the capacity to conduct Embolectomy, but in the present case, the Embolectomy was done by Dr. Harshbir Singh Pannu. The opposite parties denied that the operation of Embolectomy failed. Dr. Harshbir Singh Pannu removed the Thrombus to the best of his skill and the complainant remained admitted as indoor patient till 5-3-2011. The opposite parties denied that the condition of the complainant was deteriorated on 5-3-2010. However, on 5-3-2010, the complainant, his wife and attendants made request for referring him to Fortis Hospital, Mohali for further management and diet and he was accordingly referred. The doctor at Fortis Hospital opted not to conduct Embolectomy as it was already done, rather the Doctor at Fortis only prescribed/gave medicines to the complainant as per record placed on file by the complainant himself. The opposite parties have pleaded that, had Embolectomy been not done, there was every reason that in such type of case, amputation may be needed, but however the complainant has suffered minor disability. Whenever Embolectomy is done for removing the Thrombus after Angiography, it causes sometimes disability to some extent in the relevant portion of the body and this is not unknown and under no circumstances the disability can be attributed on the part of the opposite parties or the concerned operating doctor. The appearance of Thrombus in right arm of the patient needed immediate operation to remove the same and the same was done. The registered notice of the complaint was sent to opposite party No. 4, but none appeared on his behalf as such, exparte proceedings were taken against him. However, Sh. Ankush Mehta, Deputy Medical Superintendent, Fortis Hospital, Mohali has sent his affidavit by post, during the pendency of this complaint, mentioning therein that complainant came to Fortis Hospital, Mohali for the first time on 6-3-2010 and admittedly the best possible medical advice and treatment was rendered. Moreover, it is admitted position that because of treatment rendered by the doctor of Fortis, Mohali, condition of the complainant improved. The opposite party No. 6 filed separate written reply and pleaded that on 6-3-3010, the attendant of complainant visited CMO, NFL Hospital for outside reference of complainant. CMO, NFL inquired the position of complainant from opposite party No. 2 and he informed that inspite of Embolectomy, the embolism is recurring in the blood vessels of right arm of complainant and he needs treatment by vascular surgeon. As Fortis Hospital, Mohali is empanneled with opposite party No. 6 and having vascular surgeon, the case was referred to Vascular Surgery Department, Fortis Hospital Mohali. The opposite party Nos. 7 & 8 filed their joint written reply and pleaded that Doctor Professional Indemnity (Medical Establishment) Policy No. 200400/46/09/32/00000076 effective from 9-5-2009 to 8-5-2010 issued to opposite party No. 1 is a contract of insurance to indemnify the insured regarding the legal liability/award/order, which is passed against the insured and which has been satisfied by the insured. Although the Insurance Company is not liable to pay any compensation to the complainant nor opposite party Nos. 1 to 3 have caused any negligence in treatment of the complainant, yet if this Forum comes to the conclusion that the opposite party Nos. 1 to 3 are liable in any manner, then liability of opposite party Nos. 6 & 7 to indemnify the insured for any one year is Rs. 50 Lacs less compulsory excess clause. The opposite party No. 9 filed separate written reply and pleaded that he did his MBBS from Punjabi University, Patiala, 1985; MS in General Surgery from Govt. Medical College & Hospital, Punjabi University, Patiala in year 1989 and thereafter M.Ch. (Cardiothoracic and Vascular Surgery) from PGIMER, Chandigarh in the year 1992 thereby having 17 years post qualification experience in Cardiothoracic and Vascular Surgery and performed over 3000 Cardiothoracic Vascular operations independently with 99% success rate. All errors or omissions resulting from his medical profession were insured with opposite party No. 10 for the period from 19-5-2009 to 18-5-2010 vide Policy No. 040100/46/09/35/00000795. The opposite party No. 9 pleaded that he has been visiting Delhi Heart Institute and Research Centre, Bathinda and Embolectomy was done there on 2-3-2010 by him and not by opposite party Nos. 2 & 3. The complainant and his attendants were disclosed that Embolectomy was being done to save the hand from worsening and possible loss as the fingers were already blue due to clotting of blood and decreased blood supply to fingers. The entire medical record indicates that Embolectomy was done by opposite party No. 9. It was denied that the operation of Embolectomy failed. The opposite party No. 9 removed the Thrombus to the best of his skill and patient remained admitted as indoor patient till 5-3-2010; pain disappeared and colour of hand became pink due to increased blood supply. However, on 5-3-2010, a referral summary was prepared which was duly signed by Dr. Aman Salwan and as per desire of the patient and his attendants including his wife, the complainant was referred to Dr. Rahul Jindal, Fortis Hospital, Mohali for further advise and diet. However, Peripheral Angiography was prepared by opposite party No. 2 and Dr. Aman Salwan and the results were incorporated in the report dated 02-02-2010. The doctor at Fortis Hospital opted not to conduct Embolectomy as it was already done, rather the doctor at Fortis only prescribed medicines to the complainant. There was no negligence on the part of opposite party No. 9 in operating the patient to remove the Thrombus. Had Embolectomy not been done, there was every reason that in such type of case, amputation of hand or finger may be needed. The numbness was complained before Embolectomy. The numbness indicated decreased blood supply to nerve and possible nerve injury at the time of presentation to hospital in OPD. This could very well be the cause of disability. He pleaded that if the complainants opts, he is ready to diagnose the complainant again as to know the disability being suffered by him. Whenever Embolectomy is done for removing the Thrombus, it may leave behind all the disability which may have already occurred due to permanent damage because of cutting off blood supply to the relevant portion of body. Under no circumstances, the alleged disability can be attributed on the part of opposite party Nos. 1 to 3 & 9. Registered notice of complaint was sent to opposite party No. 10, but despite service of notice, none appeared on its behalf and as such, exparte proceedings were taken against it. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. The submission of the complainant is that on 26-02-2010, he suffered pain in his right arm. The complainant went to opposite party No. 5 i.e. Medical Officer Incharge, NFL Hospital, Bathinda and he after check up referred him for treatment to opposite party No. 1 vide O.P.D. Slip No. 4978. The complainant was taken to opposite party No. 1 on the same day i.e. 26-02-2010 wherein he was admitted vide Registration No. 10023379. The opposite party No. 2 attended him and conducted some medical tests upon the complainant. He underwent peripheral angiography on 27-2-2010 which revealed thrombus in right sub-clavian artery. The treatment advised by opposite party No. 2 was administered by opposite party No. 3 in the hospital. The complainant was diagnosed as suffering from Peripheral Vascular Disease. The complainant was advised Embolectomy and it was done on the complainant by opposite party No.2 on 2-3-2010. The allegation of the complainant is that before conducting the embolectomy, the opposite party Nos. 2 & 3 did not explain to the complainant its possible ill-effects. The opposite party No. 2 attempted Embolectomy upon the complainant but the operation failed. The opposite party No. 2 is DM Cardiology and not a qualified Vascular Surgeon and as such, he was not competent to perform embolectomy on the complainant. On 5-3-2010, the condition of the complainant deteriorated and opposite party Nos. 2 & 3 asked him to move immediately to Fortis Hospital, Mohali, for further operation and treatment from the Vascular Surgon. On 6-3-2010, the complainant was discharged from the hospital of opposite party No. 1 by opposite party No. 2 and referred to Dr. Ravul Jindal, Fortis Hospital, Mohali. The results of tests conducted at Fortis Hospital showed that embolectomy conducted by opposite party No. 1 was a failure as the same was performed by incompetent and unqualified person in a negligent manner. The doctors at Fortis Hospital opined that there was no need to conduct embolectomy as the complainant's disease was amenable to control through medicines. The doctor of Fortis Hospital, Mohali, prescribed certain medicines, advised some physiotherapy and with this treatment, the condition of the complainant started improving. On the other hand, the submission of the learned counsel for opposite party Nos. 1 to 3 and 9 is that Balbir Singh son of Labh Singh was brought by his brother Satbir Singh and he was registered at No. 100233799 referred by National Fertilizers Ltd., At that time, Balbir Singh was complaining of severe pain in his right arm and on examination his BP was 140/80 mmhg and pulse was 90/min. Precordial and rest of the systemic examination was unremarkable. Pulsation was feeble in right radial ulnar, brachial and axillary arteries. On 26-02-2010, he was admitted and some tests were conducted and on 27-02-2010, he underwent peripheral angiography which revealed thrombus in right subclavian artery. Dr. Harshbir Singh Pannu, who was one of the Chief Cardio Vascular Surgeon, whose services were available in the hospital did Embolectomy. At the time of operation, Dr. Harshbir Singh Pannu, Chief Cardio Vascular Surgeon was assisted by Dr. Gurtej Singh Anaesthetist. All the details were mentioned in the Consumption Form and it was duly filled and signed by Dr. Harshbir Singh Pannu. The patient as well as his attendants, who were large in numbers at the time of operation were explained the possible ill-affects. With experience in hand, opposite party No. 2 has got the capacity to conduct Embolectomy, but in the present case, the Embolectomy was done by Dr. Harshbir Singh Pannu. The opposite parties denied that the operation of Embolectomy failed. Dr. Harshbir Singh Pannu removed the Thrombus to the best of his skill and the complainant remained admitted as indoor patient till 5-3-2011. The opposite parties denied that the condition of the complainant was deteriorated on 5-3-2010. However, on 5-3-2010, the complainant, his wife and attendants made request for referring him to Fortis Hospital, Mohali for further management and diet and he was accordingly referred. The doctor at Fortis Hospital opted not to conduct Embolectomy as it was already done, rather the Doctor at Fortis only prescribed/gave medicines to the complainant as per record placed on file by the complainant himself. The opposite parties have pleaded that had Embolectomy not done, there was every reason that in such type of case, amputation may be needed, but however the complainant has suffered minor disability. Whenever Embolectomy is done for removing the Thrombus after Angiography, it causes sometimes disability to some extent in the relevant portion of the body and this is not unknown and under no circumstances the disability can be attributed on the part of the opposite parties or the concerned operating doctor. The complainant was diagnosed as suffering from Peripheral Vascular Disease. He was advised 'Embolectomy'. The main allegations of the complainant in this complaint are that :- i) The opposite party No. 2 was not competent to do this operation as he is DM Cardiology and not a qualified Vascular Surgeon, (ii) There was no need to conduct Embolectomy as his disease was amenable to control through medicines (iii) Before conducting the Embolectomy, opposite party No. 2 & 3 did not explain to the complainant its possible ill-effect (iv) Embolectomy conducted upon the complainant was failed due to which,he suffered 20% physical disability. To discuss the matter in question in detail, we have perused the file minutely. The allegation of the complainant is that opposite party No. 2 was not competent to conduct Embolectomy. The Discharge/referral slip Ex. C-36 & Ex. C-37 issued by Delhi Heart Institute & Research Cetnre, Bathinda, has been signed by four doctors namely Dr. Aman Salwan, DM (Cardiology), Dr. Naresh Goyal DM (Cardiology), Dr. KL Bansal MD (Medicine) and Dr. Harshbir S Pannu, MBBS MS Mch. The opposite party Nos. 1 to 3 in para No. 5 of written reply of complaint stated that no doctor can afford to do especially Embolectomy, which is supposed to be conducted by Cardio Vascular Surgeon. Dr. Naresh Goyal, opposite party No. 2 proprietor of opposite party No. 1 has deposed in para No. 6 of his affidavit Ex. R-7 that :- “....It is a matter of fact that the alleged deficiency, if any is due to the disease, he was suffering and not because of surgery. The surgery has saved the patient from amputation of his hand and even his life. The surgery conducted by Dr. Harshbir Singh Pannu was all a 'good luck' being Vascular Surgeon and no doctor of his calibre was available at that time in Bathinda. Even the instruments like special catheters used are hardly available at any other Hospital in the City. When the patient came, he had numbness and discolouration and only this surgery gave him life to live i.e. to save his hand from amputation. Dr. Harshbir Singh Pannu, who was one of the Chief Cardio Vascular Surgeon, whose services were available in the Hospital, did Embolectomy on the complainant and removed the Thrombus from the right axillary artery. Dr. Harshbir Singh Pannu did his Master Degree of Surgery from Govt. Medical College, Patiala, in year 1989 and thereafter he qualified for the Degree of Majestic Chivurgiac (Cardio Vascular and Throacic Surgery) and was admitted to the said degree at the convocation held in 1994.” Dr. Harshbir Singh Pannu, CTVS Surgeon has mentioned in his written reply that he did his MBBS from Punjabi University, Patiala in 1985 and during his studies obtained 7 Silver Medals and one Gold Medal and thereafter did his M.S. In General Surgery from Govt. Medical College & Hospital, Punjabi University Patiala in year 1989 and thereafter did his M. Ch. (Cardiothoracic and Vascular Surgery) from PGIMER, Chandigarh, in year 1992, thereby having 17 years post qualification experience in Cardiothoracic and Vascular Surgery and performed over 3000 Cardiothoracic Vascular operations independently with 99% success rate. He with his determined mind to serve the suffering patients has been visiting Delhi Heart Institute and Research Centre, Bathinda. The said doctor has admitted in para No. 5 of his reply that Embolectomy was done in opposite party No. 1 on 2-3-2010 by him and not by opposite party Nos. 2 & 3. The aforesaid version stands duly supported with the affidavit Ex. R.-3 of the said doctor. A perusal of 'The Operation Notes' Annexure R-1 of Delhi Heart Institute & Research Cetnre, Bathinda reveals that it has been filled and signed by Dr. Harshbir Singh Pannu. The complainant has not produced on file any document to prove that Embolectomy was conducted by opposite party No. 2. Hence, it stands proved on file that Embolectomy upon the complainant was conducted by Dr. Dr. Harshbir Singh Pannu,CTVS. The complainant has alleged that there was no need of Embolectomy and his disease was curable with medicines. Ex. C-5 dated 26-02-2010 test report of the complainant conducted at Delhi Heart Institute & Research Centre, Bathinda, reads as under :- “Colour Doppler Study done for upper limb Arteries show normal arterial flow waveforms in the left upper limb. There is E/O Thrombus in the right subclavian Axillary and distal vessels with complete occlusion and E/O No Flow in these vessels.” A perusal of Periphereal Angiography report dated 27-02-2010 Ex. C-9 conducted at opposite party No. 1 reveals as under :- “Right Subclavian Artery Prox. Normal Right Axillary Artery 100% Occluded with Thrombus Right Brachial Artery Filled by Collaterals Right Ulnar Artery No flow seen Right Radial Artery No flow seen” Ex. C-41 is the CT contract Report conducted at Fortis Hospital, Mohali, which is reproduced hereunder :- “The right subclavian artery appears normal. There are few irregular soft plaques/embolus in the right proximal right brachial artery resulting in significant stenosis )approx. 80 to 90%). There is complete occulusion of the right brachial artery just distal to it. There is poor suboptimal contract opacification of the right distal brachial and the right radial and ulnar arteries. Impression :- Significant stenosis in the left proximal right brachial artery and its complete occlusion distal to it.” The aforesaid reports prove that before conducting Embolectomy, there was E/O Thrombus in the right subclavian Axillary and distal vessels with complete occlusion and E/O No Flow in these vessels whereas after Embolectomy The right subclavian artery appears normal. There are few irregular soft plaques/embolus in the right proximal right brachial artery. Dr. Harshbir Singh Pannu, Cardio Vascular Surgeon has mentioned in para No. 5 of his written reply that “..... the complainant and his attendants were so disclosed that Embolectomy was being done to save the hand from worsening and possible loss as the fingers were already blue due to clotting of blood and decreased blood supply to fingers.” He has further mentioned in para No. 11 of his reply that :- “...had Embolectomy not been done, there was every reason that in such type of case, amputation of hand or finger may be needed.” The opposite party No. 2 has also deposed in para No. 6 of his affidavit Ex. R-7 that “..when the patient came, he had numbness and discolouration and only this surgery gave him life to live i.e. to save his hand from amputation.” The complainant has not produced on file any expert evidence to prove that in case of his disease and position from which he was suffering at the time of visiting opposite party No. 1, his disease could have been cured with medicines and Embolectomy was not required. The doctors at Fortis Hospital, Mohali had prescribed some medicines and advised physiotherapy vide Ex. C-49. A perusal of this document reveals that the doctors of that hospital neither pointed out any negligence on the part of the operating doctor nor contradicted the treatment given by him. No operation was done in Fortis Hospital for removal of Thrombus. Hence, this Forum is of the view that the disease/problem from which the complainant was suffering at the time of visiting opposite party No. 1 could only be cured by conducting Embolectomy which was done so by the operating surgeon. The allegation of the complainant is that before conducting the Embolectomy, opposite party No. 2 & 3 did not explain to the complainant its possible ill-effect. The opposite party No. 2 in para No. 6 of his affidavit has deposed that :- “...the complainant as well as his attendants particularly his brother Balkar Singh were disclosed the problem being faced by the complainant firstly by Dr. Arpana Singla and thereafter by Dr. K L Bansal and it was also disclosed that the Thrombus will be removed by operating the complainant by Dr. Harshbir Singh Pannu, Senior Cardio Vascular Surgeon, and that the removal thereof was necessary to avoid further complications to the complainant being best procedure for saving limb and life and all this was also disclosed to the complainant well as his attendants including his brother Sh. Balkar Singh by Dr. Arpana Singla, Dr. K L Bansal and even Dr. Harshbir Singh Pannu, Cardio Vascular Surgeon. Sh. Balkar Singh, brother of the complainant gave legal and valid consent for allowing Dr. Harshbir Singh Pannu, Senior Cardio Vascular Surgeon to operate the complainant in order to remove the Thrombus after fully understanding the success rate of the surgery.” Dr. Harshbir Singh Pannu, as reproduced above, has also mentioned in para No. 5 of his written reply that the complainant and his attendants were so disclosed that Embolectomy was being done to save the hand from worsening and possible loss as the fingers were already blue due to clotting of blood and decreased blood supply to fingers.” Hence, this Forum is of the view that Embolectomy was conducted by Dr. Harshbir Singh Pannu after duly disclosing its ill effects to the complainant as well as his attendants and conducted Embolectomy after obtaining 'Informed Consent' Ex. R-8 & Ex. R-10. The last allegation of the complainant is that Embolectomy conducted on the complainant was a failure due to which he suffered 20% disability. Dr. Harshbir Singh Pannu, the operating surgeon has mentioned in para No. 9 of this written reply that :- “It is denied that Embolectomy conducted on the complainant was a failure. No operation was done in Fortis Hospital for removal of Thrombus as it had already being removed. ...The doctor at Fortis Hospital opted not to conduct Embolectomy as it was already done rather the Doctor at Fortis only prescribed medicines to the complainant.” He has mentioned in para No. 1 of his reply that :- “...it is denied that there was any negligence on the part of replying opposite party in operating the patient to remove the Thrombus. It may be appreciated that had Embolectomy not been done, there was every reason that in such type of case, amputation of hand or finger may be needed, but however, the complainant has not suffered even minor disability. The numbness was presenting complaint before Embolectomy....The numbness indicated decreased blood supply to nerve and possible nerve injury at the time of presentation to hospital in OPD. ...The appearance of thrombus in right arm of the patient needed immediate operation to remove the same and the same was done.” The opposite party No. 2 has deposed in para No. 12 of his affidavit that the disability, if any, is caused by the Thrombus, which was already there before the patient came. The complainant has stated in his complaint that there is improvement with the treatment provided by Fortis, Mohali. Hence, this version of the complainant itself proves that after removal of Thrombus operating surgeon by conducting Embolectomy, blood circulation started and may be normal in a short span of time. A perusal of Disability Certificate Ex. C-47 reveals that it has been issued on 21-04-2010 showing 20% disability, but however it also finds mentioned that “This conditions is progressive/non-progressive /likely to improve/not likely to improve”. The complainant has himself admitted that his condition has started improving after taking treatment from Fortis, Mohali. Thus, in no circumstances it can be said that Embolectomy conducted on the complainant was a failure due to which he suffered 20% disability. Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the view that complainant has utterly failed to prove any kind of medical negligence on the part of the operating surgeon. At the time of operation, Dr. Harshbir Singh Pannu, Chief Cardio Vascular Surgeon was assisted by Dr. Gurtej Singh Anaesthetist. The operating surgeon removed the Thrombus to the best of his skill and patient remained admitted as indoor patient till 5-3-2010; pain disappeared and colour of hand became pink due to increased blood supply. The complainant was referred to Dr. Rahul Jindal, Fortis Hospital, Mohali for further advise and diet. The support can be sought by the law laid down by the Hon'ble Supreme Court in the case titled 2010(1) CPJ 29 (SC) in the case titled Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Others wherein it has been held that :-
“.... Medical negligence ......Pre-operative evaluation made – Hemiarthroplasly decided to perform on considering various option available – Respondent consented for choice of surgery after various options explained to him – Decision for choosing hemiarthroplasty not so erroneous to prove it as professional negligence – Doctor not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence – Medical negligence not proved in view of settled principles of medical negligence – No relief entitled.” The Hon'ble Supreme Court in the aforesaid case has observed that : “According to Halsbury's Laws of England Ed. 4 Vol. 26 pages 17-18, the definition of Negligence is as under :- “22. Negligence ; Duties owed to patient – A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient.” It has also been discussed in the aforementioned case that : “In a celebrated and oftenly cited judgement in Bolam V. Friern Hospital Manament Committee (1957) 1 WLR 582 : (1957) 2 ALL ER 118 (Queen's Bench Division – Lord Justice McNair observed :- “(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow line in preference to the other accords also with American law : See 70 Corpus Juris Secundum (1951) 952,953, para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself negligence ibid 971, para 48). Lord justice McNair also observed : Before I turn that, I must explain what in law we mean by “negligence”. In the ordinary case which does not involve any special skill, negligence in law means this ; some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent ? In an ordinary case, it is generally said that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Claphm omnibus because he has not got this man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligence. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Hence, this Forum concludes that the complainant has failed to prove any medical negligence on the part of operating surgeon leading any cogent, convincing and expert evidence. The opposite parties were not negligent in any manner. Therefore, no deficiency in service is proved against the opposite parties. Thus, this complaint fails and is hereby dismissed without any order as to costs.
Copy of this order be sent to the parties concerned free of cost and the file be consigned.
Pronounced 27-04-2012 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
(Sukhwinder Kaur) Member
| |
